What the High Court decided about broadcasting the Oscar Pistorius trial

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

For one thing, you probably won’t see any video of Oscar Pistorius’ or his witnesses’ testimony (although you may hear it on radio). You won’t see close-ups either. This decision is more about upholding rights than it is about the hype.

As you know, the Pretoria High Court granted the media permission to broadcast the upcoming Oscar Pistorius trial but don’t expect to see TV footage of Pistorius or his witnesses giving evidence. Judge President Mlambo has imposed a number of restrictions on the coverage you can expect in the coming weeks. The reasons for these restrictions stem from the considerations Judge Mlambo took into account and how the judge balanced a number of competing rights.

Weighing up competing rights

The various considerations and rights are summarised in the opening paragraph of the judgment:

The electronic, broadcast and print media have approached this Court to grant them permission to broadcast the entire criminal proceedings in the matter of The State vs Oscar Leonard Pistorius (Pistorius). They seek permission to do this through audio, audio-visual and photographic means. The matter brings into sharp focus the interface between the functioning of the criminal justice system on the one hand and the quest by the media and press to participate in that system on the other hand. This interface finds expression in a number of critical constitutional rights that are seemingly on a collision course with one another. These are the rights of an accused person and the prosecution to a fair trial on the one hand and the freedom of expression rights of the media as well as the open justice principle.

Judge Mlambo highlighted the media’s importance in a democratic society and quoted a number of court decisions dealing with the freedom of the press in the context of court proceedings. In the case of Khumalo and Others v Holomisa, the Constitutional Court said the following:

The print, broadcast and electronic media have a particular role in the protection of freedom of expression in our society. Every citizen has the right to freedom of the press and the media and the right to receive information and ideas. The media are key agents in ensuring that these aspects of the right to freedom of information are respected.

Broadcasting the trial (and allowing for broader coverage of any trial) is closely linked to not only freedom of expression but also the principle of open justice. As Judge Mlambo pointed out –

Our Constitution is underpinned by a number of values and for purposes of this case I refer to openness and accountability. In this regard it is also important to take cognizance of the fact that sections 34 and 35(3)C) make it very clear that even criminal proceedings in this country are to be public. The basis for this is that courts of law exercise public power over citizens and for this it is important that proceedings be open as this encourages public understanding as well as accountability.

The Judge went on to quote from the case of S v Mamabolo in which the Constitutional Court said the following:

Since time immemorial and in many divergent cultures it has been accepted that the business of adjudication concerns not only the immediate litigants but is a matter of public concern which, for its credibility, is done in the open where all can see. Of course this openness seeks to ensure that the citizenry know what is happening, such knowledge in turn being a means towards the next objective: so that the people can discuss, endorse, criticize, applaud or castigate the conduct of their courts. And, ultimately, such free and frank debate about judicial proceedings serves more than one vital public purpose. Self-evidently such informed and vocal public scrutiny promotes impartiality, accessibility and effectiveness, three of the important attributes prescribed for the judiciary by the Constitution

That said, this isn’t just about the media’s interests. Pistorius’ legal team argued that broadcasting the trial would compromise his right to a fair trial. He went as far as to argue that if the trial is broadcast, he would be denied a fair trial. His concerns were summed up as follows:

Pistorius contends that the live broadcasting of his criminal trial, through audio (radio), audio-visual (television) and still photographic means, will infringe his right to a fair trial. His view is that the mere knowledge of the presence of audio visual equipment, especially cameras, will inhibit him as an individual as well as his witnesses when they give evidence. He has also asserted that his Counsel may also be inhibited in the questioning of witnesses and the presentation of his case. He further is of the view that covering his trial as is sought by the applicants will enable witnesses still to testify to fabricate and adapt their evidence based on their knowledge of what other witnesses have testified. In his view the requested broadcasting of his trial will have a direct bearing on the fairness of the trial and contends that should the relief be granted he will most certainly not enjoy a fair trial.

The Judge accepted that Pistorius’ concerns are valid and set about balancing his right to a fair trial with the media’s right to freedom of expression and the principle of open justice. This process doesn’t involve placing more value in one or another right over the others but rather as the Court in Midi Television (Proprietary) Limited v Director of Public Prosecutions proposed –

Where constitutional rights themselves have the potential to be mutually limiting – in that the full enjoyment of one necessarily curtails the full enjoyment of another and vice versa – a court must necessarily reconcile them. They cannot be reconciled by purporting to weigh the value of one right against the value of the other and then preferring the right that is considered to be more valued, and jettisoning the other, because all protected rights have equal value. They are rather to be reconciled by recognising a limitation upon the exercise of one right to the extent that it is necessary to do so in order to accommodate the exercise of the other (or in some cases, by recognising an appropriate limitation upon the exercise of both rights) according to what is required by the particular circumstances and within the constraints that are imposed by s 36.

Judge Mlambo was also cognisant of the risks with televised broadcasts and referred to the judgment of the Constitutional Court in South African Broadcasting Corporation Limited vs The National Director of Public Prosecutions where the Court said the following:

Before turning to the question of the order, we consider it helpful to set out some considerations which in our view need to be taken into account in the future when the question of televising court proceedings is raised. The time has come for courts to embrace the principle of open justice and all it implies. However, in our view, it should be borne in mind that the electronic media create some special difficulties for the principle of open justice. Broadcasting, whether by television or radio, has the potential to distort the character of the proceedings. This can happen in two ways: first, by the intense impact that television, in particular, has on the viewer in comparison to the print media; and second, the potential for the editing of court proceedings to convey an inaccurate reflection of what actually happened. This is particularly dangerous given that visual and audio recordings can be edited in a manner that does not disclose the fact of editing. This distorting effect needs to be guarded against. It arises not so much from the presence of cameras and microphones interfering with the court proceedings themselves. But more dangerously, it may arise from the manner in which coverage can be manipulated, often unwittingly, to produce communications which may undermine rather than support public education on the workings of the court and may also undermine the fairness of the trial. Such distortions are much more likely to arise from edited highlights packages than from full live broadcasts.

What was interesting about Judge Mlambo’s judgment is how the judge differentiated between the impact radio and TV could have. In striking a balance between these competing considerations, Judge Mlambo made a series of orders.

What you will be able to see and hear

For starters, TV broadcasts will not include Pistorious’ or his witnesses’ testimony. Judge Mlambo ruled on this aspects as follows:

In balancing the competing rights at stake it is my view that the objection by Pistorius regarding the audio-visual recording as well as the still photography of him and his witnesses should not be taken lightly. It was argued on his behalf forthrightly that the inhibitory effect of audio-visual recording equipment, in particular the knowledge and awareness thereof by himself and his witnesses, will be great when they give their evidence. This potential was recognized by our highest court in the SABC vs NDPP. For this reason I am of the view that the audio-visual or televising and still photography of Pistorius and his witnesses when they testify be disallowed as this has the potential to deprive him of a fair trial on the grounds spelt out in argument on his behalf. I am persuaded that there is merit in his fears and that of his witnesses that they may be disabled somewhat in giving evidence.

TV broadcasts will likely include much of the State’s experts and witnesses although the Court made allowance for concealing witnesses’ identities if they require this. You will also be able to follow legal arguments and similar aspects of the trial.

On the other hand, you will probably be able to listen to most of the trial on radio as, Judge Mlambo reasoned, radio doesn’t have quite the same impact as TV or TV’s more problematic features in this sort of situation. The Court also imposed a number of restrictions on still photography which exclude photography of Pistorius, his witnesses and other witnesses who object. The judgment goes into quite a bit of detail about which cameras may be placed where, how they may be operated and supervised and more. Something else you won’t see are emotional close-ups of anyone. Those have also been prohibited.

Once again, be mindful of what you tweet

The point of allowing the trial to be broadcast is not to play to the hype surrounding the trial but more to give effect to the various rights and public policy considerations involved here (at least from the Court’s perspective). Judge Mlambo made a special point of addressing concerns about the planned coverage which everyone should take a few moments to consider:

I must hasten to mention that the decision I have come to should be embraced with the objective I have spelt out in this judgment. I mention this as it has come to my attention that there are media houses that intend to establish 24 hour channels dedicated to the trial only and that panels of legal experts and retired judges may be assembled to discuss and analyse the proceedings as they unfold. Because of these intentions, it behoves me to reiterate that there is only one court that will have the duty to analyse and pass judgment in this matter. The so-called trial by media inclinations cannot be in the interest of justice as required in this matter and have the potential to seriously undermine the court proceedings that will soon start as well as the administration of justice in general.

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p>In other words, be careful what you say online, in public discussions and, especially, if you are commenting on the case as part of the planned public broadcasts. As the judge said, there is one court that will adjudicate this matter and made any determinations of guilt. As far as the law is concerned, Pistorius is innocent unless the Court subsequently finds otherwise.

What you should not share online

​The social Web encourages sharing but sometimes we share too much. This post gives you an idea of what to look out for and, perhaps, what not to share.

I received an email from Nadya, a Canadian student, who is researching how people express themselves online and she posed a few questions which I answered in a recording. This is related to my previous post titled “What you can legally say on Twitter” which I published in the aftermath of the Oscar Pistorius tweetstorm. I go a little further than defamation and also talk a little about privacy concerns and content sharing. The important thing to bear in mind is that just because you are using the social Web to express yourself, it doesn’t mean that what you say and share won’t have very real consequences for you and people close to you.

Defamation law’s chilling effects on social media

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression. 

Jamie's 3rd birthday party photos-24

Quirk invited me to listen to and watch Emma Sadleir speak about social media and the law last Friday. She took the Quirk team and a few guests (which included me) through South African law on defamation and how it related to social media. For the most part she dealt with fundamentals in our law and, at one point, she pointed out that, in her view, retweeting a defamatory tweet exposed the re-tweeter to a defamation claim alongside the original poster.

@emmasadleir “anyone can be sued in ‘chain of publication’”… “but there is a ‘innocence of dissemination’ defence” #UoQJozi

— justinspratt (@justinspratt) March 1, 2013

I don’t necessarily agree with Emma’s views but I agree that a court will likely see retweets as endorsements and will hold re-tweeters (and equivalent users on other platforms) liable for defamation because they clicked a button and shared a defamatory update with their followers or connections.

While I can understand the argument and agree there is merit to it, as well as the challenge that retweeting and similar sharing online potentially and exponentially aggravates the initial defamation, I don’t necessarily agree that it should be actionable on this scale.

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression.

The social Web is an unparalleled platform for expression (both desirable and undesirable). It is absolutely used for undesirable purposes that include unjustifiably harming reputations, economically harming content creators by exploiting their work without their permission and harming systems around the world. At the same time, it is a powerful platform for previously disenfranchised voices which include protestors fighting oppressive regimes and consumers speaking out against irresponsible brands.

Applying conventional defamation law to these scenarios without developing a more nuanced and robust model of what should be protected free expression could have the effect of stunting what could otherwise be a radically transformative shift in our collective culture towards a more transparent and empowered society. A quote from the 1925 US Supreme Court case of Whitney vs California seems appropriate:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

What you can legally say on Twitter

When it comes to acceptable conduct on Twitter and, defamation in particular, our law will govern how South African Twitter users use Twitter and may well inform how Twitter responds to improper use of its service too. Although simply making defamatory statements is not immediately actionable, doing so unjustifiably likely is wrongful and can expose you to legal proceedings seeking to stop you, to remove your defamatory statements or even to claim financial compensation from you. That said, there would be a tension between Twitter’s approach to users’ freedom of expression and local judicial authorities’ approach which could be interesting but, on the whole, Twitter will likely respect local laws which are aligned, at least ostensibly, with its values.

Nokia Lumia launch-72

The Oscar Pistorius case has clearly illustrated just how important Twitter has become to us as an information service and as a form of expression for individuals. It exists both in the real world and in a sort of altered reality for many of its users. The result is that people often find themselves tweeting things they wouldn’t say in person and may of those things can be defamatory and actionable in our law. An important question is what you, as a Twitter user (or as a person using most publish social services, generally) can say (and, by implication, what you shouldn’t)?

What Does Twitter Permit?

Twitter’s terms and conditions comprise its Terms of Service and the Twitter Rules. Between them, these two frameworks establish a set of rules and guidelines for acceptable Twitter use[1].

Twitter’s Terms of Service

Twitter’s Terms of Service are the contract between you and Twitter. This is how Twitter introduces this contract:

These Terms of Service (“Terms”) govern your access to and use of the services, including our various websites, SMS, APIs, email notifications, applications, buttons, and widgets, (the “Services” or “Twitter”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

This means that the Terms of Service are the primary legal framework as far as you and Twitter are concerned. When you violate the Terms of Service you may not be breaking the law but you are breaking your contract with Twitter and can lose your profile and further access to the service. As the saying goes, “easy come, easy go” and Twitter can terminate your access to the service if you violate the Terms of Service. The section titled “Ending These Terms” includes the following:

The Terms will continue to apply until terminated by either you or Twitter as follows.

You may end your legal agreement with Twitter at any time for any reason by deactivating your accounts and discontinuing your use of the Services. You do not need to specifically inform Twitter when you stop using the Services. If you stop using the Services without deactivating your accounts, your accounts may be deactivated due to prolonged inactivity under our Inactive Account Policy.

We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; or (iii) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account.

Twitter is also the gatekeeper when it comes to your Twitter use and can decide how and when you may use the service and in what manner:

Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

Twitter Rules

So you can be sued for defamation of character for things said on Twitter. That’s assuming the person you defame has any character.

— Jonathan Witt (@Jonathan_Witt) February 23, 2013

The Terms of Service specify technical restrictions for how you may make use of the service but the Twitter Rules specifically address your conduct on Twitter and what is permissible. Interestingly, Twitter doesn’t address defamation directly in the Twitter Rules. Instead, it prohibits the following broad categories of activities on Twitter:

  • Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
  • Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
  • Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
  • Violence and Threats: You may not publish or post direct, specific threats of violence against others.
  • Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
  • Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
  • Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile photos, header photos, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

In addition, anyone who uses Twitter for the following purposes will be subject to “permanent suspension”:

  • Serial Accounts
  • Username Squatting (also known as Brandsquatting)
  • Invitation spam
  • Selling user names
  • Malware/Phishing
  • Spam
  • Pornography

Twitter protects users’ rights to freedom of expression, for the most part, although these protections are limited in some instances and have become somewhat eroded through steps taken to censor Twitter users, sometimes controversially. When it comes to freedom of expression, Twitter protects aspects of this freedom such as parody, commentary and fan accounts but has little tolerance for, and has developed specific policies catering for, misuses that include impersonations falling outside the scope of parody, commentary and fan accounts and abusive behaviour (which is not very clearly defined).

What Does the Law Permit?

@songezozibi#blacktwitter watched Carte Blanche and discovered that defamation laws cover social media. It’s hilarious.

— Sipho Hlongwane (@comradesipho) February 24, 2013

Defamation in South Africa has developed quite a bit in the last decade or so. That’s not to say that it has changed radically but how it is applied has. For one thing, the Bill of Right’s introduction (first in the interim Constitution in 1994 and, later, in the final Constitution in 1996) led judges to base their decisions on an analysis of the relative weight of various rights which usually include the right to dignity and the right to freedom of expression.

I referenced current judicial authorities on defamation which Judge Willis discussed in his recent judgment about a case involving defamation on Facebook in my article about that case and this extract is worth repeating:

After exploring Twitter briefly, Judge Willis turned to established case law in South Africa including authority for the proposition Roos expressed that a privacy infringement can be justified in a similar way that defamation can be justified and a more recent Supreme Court of Appeal judgment in the 2004 Mthembi-Mahanyele v Mail & Guardian case which, according to Judge Willis –

affirmed the principle that the test for determining whether the words in respect of which there is a
complaint have a defamatory meaning is whether a reasonable person of ordinary intelligence might reasonably understand the words concerned to convey a meaning defamatory of the litigant concerned

The Court, in the Mthembi-Mahanyele case set out the test for defamation as follows (and cited a 1993 case in the then-Appellate Division of Argus Printing and Publishing Co Ltd v Esselen’s Estate) –

The test for determining whether words published are defamatory is to ask whether a ‘reasonable person of ordinary intelligence might reasonably understand the words . . . to convey a meaning defamatory of the plaintiff. . . . The test is an objective one. In the absence of an innuendo, the reasonable person of ordinary intelligence is taken to understand the words alleged to be defamatory in their natural and ordinary meaning. In determining this natural and ordinary meaning the Court must take account not only of what the words expressly say, but also of what they imply’

Referencing one of the justifications for (or defences to) defamation, namely that the defamatory material be true and to the public benefit or in the public interest, Judge Willis drew an important distinction that is worth bearing in mind –

A distinction must always be kept between what ‘is interesting to the public’ as opposed to ‘what it is in the public interest to make known’. The courts do not pander to prurience.

The Court moved on to explore another justification, fair comment. In order to qualify as “fair comment” –

the comment “must be based on facts expressly stated or clearly indicated and admitted or proved to be true”

The person relying on this justification must prove that the comment is, indeed, fair comment and “malice or improper motive” will defeat this justification or defence, regardless of its demonstrably factual nature. In this particular case, the Court found that W acted maliciously and she was unable to prevail with this defence.

When it comes to acceptable conduct on Twitter and, defamation in particular, our law will govern how South African Twitter users use Twitter and may well inform how Twitter responds to improper use of its service too. Although simply making defamatory statements is not immediately actionable, doing so unjustifiably likely is wrongful and can expose you to legal proceedings seeking to stop you, to remove your defamatory statements or even to claim financial compensation from you. That said, there would be a tension between Twitter’s approach to users’ freedom of expression and local judicial authorities’ approach which could be interesting but, on the whole, Twitter will likely respect local laws which are aligned, at least ostensibly, with its values.

The Other Considerations

Leaving aside the law and your contract with Twitter, online defamation is tricky. Your legal rights and rights under a provider’s terms of service may protect you in theory but the social Web has its own dynamics which operate, frequently regardless of what should happen. It is very easy to tweet something that you may feel strongly about in that moment (I have certainly done that) and it is worth bearing Judge Willis’ advice in mind for those times when your tweets perhaps go too far:

Those who make postings about others on the social media would be well advised to remove such postings immediately upon the request of an offended party. It will seldom be worth contesting one’s obligation to do so. After all, the social media is about building friendships around the world, rather than offending fellow human beings. Affirming bonds of affinity is what being ‘social’ is all about.

  1. Other services have similar frameworks (take a look at Facebook’s Statement of Rights and Responsibilities and Community Standards guidelines as well as WordPress’ Terms of Service for hosted service users)  ↩

Is porn industry regulation a freedom of expression issue?

Nude girl lounging in a box full of rabbit fur

Fiona Snyckers wrote an interesting post for Thought Leader titled “Regulation of the porn industry is not a free speech issue“. Her basic premise is that the porn, or adult entertainment, industry is primarily a commercial endeavour and content the content the industry produces is not protected as “free speech”. Leaving aside whether its desirable to have this sort of adult content available on TV and, by extension, the Web and other media (that is a different debate which I’m not going to explore in this post), Snyckers tries to make an interesting point, albeit on a flawed premise.

In most western-style democracies, pornography does not enjoy the protection of the freedom of speech laws. This is because it is classified as a form of commercial expression, rather than artistic or ideological expression. Have you never wondered, for example, why the advertising industry is subject to such stringent laws? It even has its own control board — the Advertising Standards Authority of South Africa. Advertisers are not permitted to do a whole bunch of things, including explicitly compare their own brand with someone else’s, offend the public’s religious or moral sensibilities, or post billboards of naked people. The list of things they’re not allowed to do is a very long one indeed.

So how come the government is allowed to restrict the advertisers’ freedom of expression in this way? And why does nobody ever protest about it?

It all has to do with the fact that advertising is regarded as a form of commercial, rather than artistic expression. The advertisers are not trying to bare their artistic souls to us — they are trying to sell products. And because selling products is an entirely commercial enterprise, laws have evolved to regulate it.

Snyckers’ first assumption is that commercial expression is not protected under our Bill of Rights. This is not necessarily correct. The right to freedom of expression states the following:

16 Freedom of expression

(1) Everyone has the right to freedom of expression, which includes-

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion,

and that constitutes incitement to cause harm.

The right does not limit its application to commercial forms of expression. The Bill of Rights applies to both natural persons (humans) as well as juristic persons (such as companies) “taking into account the nature of the right and the nature of any duty imposed by the right”. It is entirely plausible that commercial expression could be protected under this right and we have seen this in cases like Print Media South Africa and Another v Minister of Home Affairs and Another which dealt with an amendment to the Films and Publications Act which established criteria for ratings for sexual and other content. This case centred on whether the amendment violated the right to freedom of expression in the context of adult content (Also take a look at Pierre De Vos’ post titled “On freedom of expression and censorship of magazines” in which he considered this case):

In essence, the contention of the applicants is that the challenged provisions are unconstitutional mainly because the said provisions are a limitation of the entrenched constitutional right to freedom of expression.

Another flawed assumption in Snyckers’ post is that the fact that commercial expression, such as advertising, is regulated is confirmation that commercial expression is not protected. This is not the case at all. The rights in the Bill of Rights are not absolute. The right to freedom of expression is, like the other rights, subject to limitation on certain grounds. This particular right has a number of limitations detailed in section 16 itself (sub-section 2) and is also subject to a general limitations clause which allows for national legislation, for example, to limit a right. Rights are also limited by Courts when they compete with other rights. In defamation cases, for example, Courts often weigh up one party’s right to freedom of expression against another party’s rights to dignity and privacy and attempt to strike a balance between these competing rights.

When it comes to the porn industry, the test a Court applies probably won’t be whether the enterprise is a commercial one and, therefore undeserving of protection under the right to freedom of expression, but rather whether the enterprise, in exercising its right to freedom of expression, infringes on other people’s rights and whether the enterprise’s ability to exercise its right to freedom of expression should be limited?

Regulators: Hands off the social Web

Two recent events have sparked debates about whether the social Web should be censored: the first is the recent civil unrest in London and the second is a recent report in the Sunday Times about a racist calling himself “Eugene Terrorblanche” publishing a deeply disturbing photo on Facebook (it turns out this is an old story but relevant nonetheless).

Riots in Greece (Dec 2008) Tear Gas

When faced with these sorts of social network abuses, its sometimes tempting to ask whether these social services are somehow inherently bad for allowing themselves to be abused like this. The short answer is “no” and that these services typically take action against the offending material or account where the use falls foul of their terms of service or is otherwise illegal. Facebook’s Statement of Rights and Responsibilities contain the following use restrictions:

Safety

We do our best to keep Facebook safe, but we cannot guarantee it. We need your help to do that, which includes the following commitments:

  1. You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
  2. You will not collect users' content or information, or otherwise access Facebook, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.
  3. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
  4. You will not upload viruses or other malicious code.
  5. You will not solicit login information or access an account belonging to someone else.
  6. You will not bully, intimidate, or harass any user.
  7. You will not post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
  8. You will not develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions.
  9. You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (“promotion”) on Facebook.
  10. You will not use Facebook to do anything unlawful, misleading, malicious, or discriminatory.
  11. You will not do anything that could disable, overburden, or impair the proper working of Facebook, such as a denial of service attack.
  12. You will not facilitate or encourage any violations of this Statement.

Twitter’s Rules contain the following restrictions:

Content Boundaries and Use of Twitter

In order to provide the Twitter service and the ability to communicate and stay connected with others, there are some limitations on the type of content that can be published with Twitter. These limitations comply with legal requirements and make Twitter a better experience for all. We may need to change these rules from time to time and reserve the right to do so. Please check back here to see the latest.

  • Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
  • Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
  • Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
  • Violence and Threats: You may not publish or post direct, specific threats of violence against others.
  • Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
  • Unlawful Use: You may not use our service for any unlawful purposes or in furtherance of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
  • Misuse of Twitter Badges: You may not use a Verified Account badge or Promoted Products badge unless it is provided by Twitter. Accounts using these badges as part of profile pictures, background images, or in a way that falsely implies affiliation with Twitter will be suspended.

Google+’s content policy contains similar restrictions. The point is that these social services contain mechanisms in their terms of service which prohibit users from using their services of these sorts of uses and to remove the content in question or delete the user’s profile where these rules are infringed.

Neutral tools and misinformed assumptions

Notwithstanding these infrastructural barriers to improper uses of these services, governments and regulatory bodies have raised the possibility of regulation of the social Web as a response to what they may regard as offensive or inappropriate use of these social services. In the United Kingdom, the British government mooted the possibility of restricting access to social services like Twitter, Facebook and Blackberry’s messaging services which were apparently used by rioters to co-ordinate their activities. The challenge with Blackberry’s services, in particular, is they are purportedly encrypted and that has frustrated numerous governments seeking to spy on their Blackberry-using citizens. The desire to censor or restrict these services because they may have been used by criminal elements in the United Kingdom is short-sighted and doesn’t take into account the beneficial uses of these services.

The Guardian published results of a study of Twitter usage during the London riots recently. Not surprisingly, the study’s findings revealed that the perception of these social services primarily as tools for criminals was overstated.

Analysis of more than 2.5m Twitter messages relating to the riots in England has cast doubt on the rationale behind government proposals to ban people from social networks or shut down their websites in times of civil unrest.

A preliminary study of a database of riot-related tweets, compiled by the Guardian, appears to show Twitter was mainly used to react to riots and looting.

Timing trends drawn from the data question the assumption that Twitter played a widespread role in inciting the violence in advance, an accusation also levelled at the rival social networks Facebook and BlackBerry Messenger.

The study revealed that Twitter, for example, was used to organize responses to the rioting and to co-ordinate a clean-up. In other words, the victims of the violence used Twitter to organize themselves and a response to the same criminal activity which similarly relied on these services to propagate. Restricting access to these services may stifle criminal activity but it may also stifle beneficial uses of the services.

Locally, the Sunday Times article sparked various debates about the disturbing photo of the apparent right winger. One of the debates focused on how the photo and the story first broke in 2008 and was hardly the news the Sunday Times portrayed it as. The Sunday Times came under criticism for making much of an old story and yet these critics have glossed over two serious issues: the photo was still available on Facebook 3 years after it was first noticed by the media and the photo still depicts a very disturbing image of a white man enthusiastically posing over the apparent body of a black boy with his rifle as if the white man hunted him. Irrespective of whether the photo is real or a fabrication, the message the photograph should most certainly concern us for various reasons. It touches on old racial tensions which are very much alive and well 17 years after South Africa adopted a broad democracy based on fundamental rights such as equality and dignity.

The photograph also suggests that these same racial tensions are not just the domain of an older generation but have been handed down to a younger generation on both sides of the growing racial divide. We see it in this photograph and we see it in Julius Malema’s rhetoric. These are some of the real issues we should be concerned about, not which publication published the story first or whether the photograph may have been fabricated (if the photograph is an accurate portrayal of what it appears to portray, it is an even more graphic illustration of these issues).

Regulation and censorship

Riot squad

Another debate which this story’s renewed publicity has sparked is a similar one to the debate underway in the United Kingdom: should the social Web be regulated, censored, to address improper uses of these services? The chairperson of the South African Human Rights Commission, Lawrence Mushwana, recently released a statement suggesting that the social Web should be regulated. According to the Citizen, reporting on this –

Mushwana said even though there was no doubt that social networking sites played an important role in promoting the right of freedom of expression it was clear that practical ways should be found to ensure they were used appropriately.

One of the issues raised was individuals’ ability to hide behind pseudonyms and relatively untraceable profiles and post offensive material or even conduct criminal activity using these social services (social services like Google+ and Facebook take a firm stand against pseudonyms and this has proven to be controversial). The SAHRC has apparently had to close numerous files because people suspected of human rights abuses have been unable to locate and hold accountable. One stark example of this is the young man depicted in the photograph the Sunday Times published. While that is certainly a concern, it is also important to point out that the call for assistance in identifying this individual was made, in part, using the social Web. The link to the article was published on the Sunday Times website and was disseminated using Twitter and Facebook links alongside the article almost 800 times on Twitter and over 3000 times as I write this. These numbers don’t take into account how often the story’s link was shared on Twitter and Facebook directly or even on other social services ranging from email to the relative newcomer, Google Plus.

Mushwana’s chilling call for regulation ignores the fact that the law in South Africa already prohibits incitements to violence and hate speech, to name two features of these two stories. The right to freedom of expression specifically excludes its application to incitement to violence and hate speech. Criminal activities co-ordinated through social services, the phone or word of mouth are equally illegal and punishable. I also believe that just as with content piracy, criminals intent on abusing social services to further their criminal activities will find other ways to do this if current channels are simply cut off. What happens then is that the very people who would otherwise be empowered by these social services to resist our society’s harmful elements will be deprived of an accessible, powerful and effective set of tools. What governments and regulators should rather do is find better ways to make use of these services to harness crowd wisdom to monitor and combat the social Web’s abusers. One example of where British police have started doing this is publishing surveillance photos of the looters to Flickr and asking citizens to identify them so the police could arrest the suspected looters.

Legally speaking, there may be compelling grounds to argue that depriving citizens of the use of these social services may unreasonably infringe citizens’ rights to dignity, freedom of association, not to mention the right to freedom of expression. We have a fairly robust recognition for the value of these rights in our constitutional jurisprudence and limiting the scope of our rights is not a small matter. The Constitutional Court in the matter of S v Mamabolo (E TV and Others Intervening) stated the following:

Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.

In policy terms, the question how far this sort of regulation goes also arises. Censoring criminals using social services is a relatively easy choice but what happens when the people using these services are legitimately protesting an unpopular government or policies designed to erode human rights. We have seen several examples of the former in the Middle East and north Africa this year and examples of the latter here in South Africa when the government introduced legislation which would substantially erode freedom of the press, for instance.

The law is developed enough to deal with these sorts of issues even as the tools used to commit these misdeeds become more widespread and versatile. The social Web introduced us to a new paradigm but that paradigm doesn’t just apply to marketing initiatives, the social Web amplifies social conventions and empowers previously disadvantaged people who lacked the means to express their voices. The social Web is not inherently good or bad and regulatory frameworks exist alongside contractual frameworks established by these social services to recognise and combat abuses like hate speech and incitements to violence. What governments and regulators are forced to contend with is a fundamental shift of the power dynamics between them and citizens but those shifts can have profoundly beneficial implications for the same citizens those regulators seek to protect. Where citizens find themselves subject to tyranny, they have resorted to these tools to combat that tyranny. As the old adage goes:

Guns don’t kill people, people kill people.


Photo credits:

Privacy, freedom of expression and Julius Malema’s failed City Press gag attempt

Dada Julius Malema

When Julius Malema learned that the City Press was about to publish details of his wealth and resources, he launched an urgent application to stop the publication from going to press. Judge Colin Lamont ruled against Malema in an judgment which seems reminiscent of the judgment against the former and late Health Minister, Judge Lamont ruled, at least in part, that being a public figure exposes you to greater scrutiny and a reduced privacy expectation. According to City Press:

Lamont – coincidentally the same judge who heard the hate speech case brought against Malema by AfriForum – also shattered the youth leader’s belief that he is a private citizen entitled to the same level of privacy “normal” South Africans enjoy.

“At present, there is a discussion in the press concerning whether or not his income justifies his expenses,” Lamont said.

“The question of Mr Malema’s income is topical and relevant. The public is entitled to have full disclosure by persons who stand in public position, and who are high-profile personalities who invite comment about themselves.”

I haven’t seen a copy of Judge Lamont’s judgment and will look out for it but Judge Jajbhay dealt with many of the issues I imagine Judge Lamont considered in his judgment in the Msimang case. In that earlier matter Judge Jajbhay wrote at length about the sorts of competing considerations I expect came into play in Malema’s case. The extract below is from Judge Jajbhay’s judgment, starting at paragraph 35.

The freedom of the press is celebrated as one of the great pillars of liberty. It is entrenched in our Constitution but it is often misunderstood. Freedom of the press does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.

As a general matter, any person is likely to feel violated, harmed and invaded by the publication of unlawfully obtained information. Any reasonable person would probably feel less concerned if their discussions of an upcoming metropolitan council election, or the state of the global economy was unlawfully intercepted and subsequently published, than that person would if their discussion of intensely private matters such as family disputes or medical records were illegally intercepted and published for a larger audience. Similarly, on the public interest side of the equation, the public will certainly be interested and accordingly benefit from discussion of matters which are clearly in the public interest.

Public interest it must be noted is a mysterious concept. Like a battered piece of string charged with elasticity, impossible to measure or weigh. The concept changes with the dawn of each new day, tempered by the facts of each case. Public interest will naturally depend on the nature of the information conveyed and on the situation of the parties involved. Public interest is central to policy debates, politics, and democracy. While it is generally acclaimed that promoting the common well-being or general welfare is constructive, there is little, if any, consensus on what exactly constitutes the public interest.

The public has the right to be informed of current news and events concerning the lives of public persons such as politicians and public officials. This right has been given express recognition in Section 16(1) (a) and (2) of the Constitution which protects the freedom of the press and other media and the freedom to receive and impart information and ideas. The public has the right to be informed not only on matters which have a direct effect on life, such as legislative enactments, and financial policy. This right may in appropriate circumstances extend to information about public figures.

The question then is who is a public figure and to what extent may such a public figure rely on his or her right to privacy to prevent publication of matter he or she would rather keep private? Here, professor McQuoid- Mason offers the following test:

“In short it is submitted that the test whether a person is a public figure should be: has he by his personality, status or conduct exposed himself to such a degree of publicity as to justify intrusion into, or a public discourse on, certain aspects of his private life? However, non-actionable intrusions on his privacy should be limited to those that are in the public interest or for the public benefit, so that unjustified prying into personal affairs, unrelated to the person’s public life, may be prevented.”

Where a person seeks publicity and consents to it, or in relevant circumstances, by the nature of the position occupied by the individual, this individual cannot object when his or her actions are publicised. This principle applies equally, in appropriate cases, where the information sought to be published has been unlawfully acquired. However, any such interference must be both reasonable and necessary. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.

Freedom of expression includes the right to acquire information and to disseminate it. Freedom of expression enables people to contribute to debate on social and moral issues. This right is the most important driver of political discourse so essential to democracy, which in turn is a concomitant of a free society.

The City Press’ articles paint a revealing picture of Malema’s finances and his dealings with various businesspeople who allegedly make substantial contributions to Malema’s trust fund. Regardless of how this affects his political career, the judgment is a welcome contribution to the growing body of law on freedom of expression and where it intersects with privacy rights.


Image credit: Dada Julius Malema by Roy Blumenthal, licensed CC BY SA 2.0

Super-injunctions, football players and their affairs

While they were initially intended to protect the people whose lives may be at risk should their identities ever be exposed (for example, child offenders), super-injunctions are being used by English celebrities and other personalities to stifle freedom of expression in England and Wales. Not only do these orders prohibit publication of information the applicants regard as sensitive but the orders prohibit any publication of the fact that they exist in the first place. These orders only appear to be enforceable in England and Wales and should be too much of a concern for anyone outside the United Kingdom, as I understand their application.

One case has become particularly well publicized regardless of the super-injunction apparently in force largely due to a @PigSpotter-style Twitter account set up to shine a spotlight on these super-injunctions and the secrets they are intended to hide.

Super injunction tweet

@InjunctionSuper published this tweet exposing an affair between UK soccer star, Ryan Giggs, and Imogen Thomas. This tweet sparked legal proceedings which Ars Technica tried to describe recently:

That brings us to today. An entity going by “CTB” has filed suit against Twitter and some of its users for breaking a super-injunction over… something. According to Bloomberg, there were no details on what the super-injunction was about or who was accused of leaking the information. However, the initials “CTB” are also used in a separate suit about an athlete who won an anonymity order after allegedly having an affair with a reality TV “star,” leading many to believe that CTB is the athlete and someone posted details of the affair to Twitter, leading to the new lawsuit.

Twitter is listed as a defendant in the suit, as well as “persons unknown responsible for the publication of information on the Twitter accounts.” It’s not clear how the High Court plans to get a US company like Twitter to comply, though. According to US law, sites like Twitter and Facebook aren’t liable for the crazy postings of their users thanks to Section 230 of the Communications Decency Act, and for most things, users’ speech is protected by the First Amendment. 

As for Twitter’s response to the story: “We are unable to comment.”

Update: We’ve been informed by our resident Brit (Peter Bright) that CTB is soccer player Ryan Giggs, who is believed to be attempting to cover up his affair with TV personality Imogen Thomas. It’s also worth noting that this is information that is easily found on the Web. 

To say the effects of these super-injunctions are chilling is an understatement. I have great difficulty seeing these sorts of orders ever getting past a Constitutional test in our courts and yet they seem to be fairly common in English and Welsh courts, ironically due to an interpretation of the 1998 Human Rights Act passed in the United Kingdom.

Giggs and other super-injunction applicants face a number of practical challenges enforcing their orders. One of those challenges is the Streisand Effect which Giggs appears to be unaware of and which has led to exposure of his identity on Twitter and elsewhere (at one point his name was reportedly mentioned 16 times a minute). His efforts to make use of an extremely onerous legal mechanism (one which UK government ministers are expressing increasing concern over) to stifle freedom of expression in order to keep his alleged affair with Imogen Thomas secret are only contributing to the whole affair’s increased publicity.

Underestimating the Streisand Effect is becoming a classic mistake made by litigants and their lawyers who are unfamiliar with the phenomenon and the manner in which these sorts of memes can rapidly go viral across the social Web. It is also a phenomenon which reputation management experts are very much aware of and seek to guard against where possible. The Giggs-Thomas story and the super-injunction used to conceal it will likely be of passing interest for the duration of this particular news cycle but it is yet another reminder of how lawyers must approach certain issues very differently. While Twitter, Facebook and other social Web platforms can be, and are being, used to defame people and invade their privacy, unscrambling those eggs can prove to be virtually impossible.

Super injunction mention in Parliament

As I end off this post news is breaking on Twitter that Ryan Giggs has been named in the English House of Commons as the person behind this super-injunction, opening the Twitter flood gates. John Hemming MP is taking advantage of a qualified indemnity granted to English lawmakers to reveal Giggs identity. Officially, at least.